It may not be what you think.
By Jeanne Theoharis
A U.S. citizen has spent his last three birthdays in solitary confinement awaiting trial.
Not in Iran.
Not in North Korea.
But in the Metropolitan Correctional Center in lower Manhattan.
His name is Fahad Hashmi. He turned 30 last week.
But there was no celebration with family and friends, though they are but a few miles away. He grew up in Queens, N.Y., where his family still lives, and he received his bachelor's from Brooklyn College.
Hashmi is awaiting trial on four charges of material support to al-Qaida.
Under special administrative measures imposed by the U.S. attorney general, Hashmi is not allowed contact with anyone — outside his lawyers and highly restricted visits every two weeks with his parents (which in December were suspended without explanation).
His cell is electronically monitored inside and out, 24 hours a day. He is allowed only one hour out of his cell a day and is forced to exercise in a solitary cage. Because much of the evidence in the case is classified, he has not been allowed to review it.
The “centerpiece” of the U.S. government’s material support charges against him, it claims, is the testimony of a cooperating witness, Junaid Babar.
Babar, an acquaintance of Hashmi’s who came to London in 2004 when Hashmi was doing his graduate study there, asked to stay with him for two weeks. The government claims that Babar had luggage containing raincoats, ponchos and waterproof socks in Hashmi’s apartment, and that later Babar delivered these materials to the third-ranking member of al-Qaida in South Waziristan, Pakistan. In addition, Hashmi allowed Babar to use his cell phone, who then allegedly called other conspirators in terrorist plots. Babar was subsequently arrested and has agreed to testify in a number of cases in exchange for a much-reduced sentence.
On Tuesday, Feb. 23, the U.S. Supreme Court took up the issue of these material support laws, hearing arguments in Holder v. Humanitarian Law Project. Brought by the Humanitarian Law Project and the Center for Constitutional Rights, the case challenges certain aspects of the material support provisions introduced under President Clinton’s Antiterrorism and Effective Death Penalty Act and expanded under the Patriot Act. The law defines and bans material support as the knowing provision of “any service, training, [or] expert advice or assistance” to a group designated by the federal government as a foreign terrorist organization. The challengers argue that aspects of the ban — and its definition of material support — are overly vague and violate the First and Fifth Amendments by inhibiting a range of protected activities.
Material support laws are the black box of domestic terrorism prosecutions, a shape-shifting space into which all sorts of constitutionally protected activities can be thrown and classified as suspect, if not criminal. Their vagueness is key. They criminalize guilt by association and often use political and religious beliefs to demonstrate intent and state of mind.
Hashmi, for instance, had drawn the attention of authorities years earlier as an outspoken activist in the Muslim community and member of the New York political group al-Muhajiroun while he was a student at Brooklyn College. He faces charges of material support without being accused of being a member of al-Qaida, of trying to help al-Qaida commit any act of terrorism or any crime, or of even having any direct contact with al-Qaida.
This is the new McCarthyism, under the guise of “material support” for terrorism but bearing a stark resemblance in practice to the criminalization of belief and association a half century ago.
And so Fahad Hashmi sits in isolation, still awaiting trial, in a legal black hole in New York City. Let us hope the current Supreme Court heeds former Chief Justice’s Earl Warren’s caution: “It would indeed be ironic if, in the name of national defense, we would sanction the subversion of … those liberties … which makes the defense of this nation worthwhile.”
Jeanne Theoharis is professor of political science and endowed chair in women’s studies at Brooklyn College of CUNY. She is the author of numerous books on civil rights and is the co-founder of Educators for Civil Liberties. She can be reached at firstname.lastname@example.org.